MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 October 2001                   
	DOCKET NUMBER:   AR2001061120

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his honorable discharge as a result of his unqualified resignation be changed to a medical separation as a result of a service-connected disability.

APPLICANT STATES:  That he suffered a head injury during mandatory boxing class on 1 September 1998.  His injury was causing severe headaches and dizziness and he was given a variety of medications to treat these symptoms.  Because of upperclass pressure and lack of support from his chain of command he was made to feel like he was shirking his duties.  Eventually, he became so debilitated that he was unable to function as a plebe and was sent to counseling. Subsequently, he sought resignation from the U. S. Military Academy (USMA) as his only option without realizing the extent or severity of his injury.  Had he received a complete and full medical evaluation rather than just counseling prior to his separation, the extent and severity of his injury would have qualified him for a medical separation for a service connected disability.  The VA has since granted him a 50 percent disability rating for cognitive disorder with depression post concussional disorder.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered the Army as a USMA Cadet on 29 June 1998.  Available service medical records and the VA rating decision show the applicant has presented an accurate portrayal of the events surrounding his head injury and treatment.  

In a letter from the applicant’s father to their Representative in Congress, his father indicated that a doctor at the USMA told the applicant he should go to Walter Reed Army Medical Center (WRAMC) for observation and evaluation.  Although his parents encouraged him to go to WRAMC, the applicant decided not to because his chain of command told him that if he went he was finished at West Point.  

On an unknown date, the applicant requested unqualified resignation.  His request was approved and he was discharged effective 22 October 1998.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 1-4 states that Title 10, U. S. Code, section 1217 excludes cadets of service academies from eligibility for disability benefits under Title 10, chapter 61.  However, USMA cadets may be entitled to compensation administered by the VA.  Title 38, U. S. Code, section 101(21)(D) includes service as a cadet at the USMA within the definition of active duty for purposes of entitlement to VA compensation.  
Title 10, U. S. Code, chapter 61 (Retirement or Separation for Disability), section 1217 (cadets, midshipmen, and aviation cadets:  chapter does not apply to) states “This chapter does not apply to cadets at the United States Military Academy, the United States Air Force Academy, or the Coast Guard Academy or to midshipmen of the Navy.”

The VA awarded the applicant a 50 percent disability rating for cognitive disorder with depression post concussional disorder effective 10 April 2000, the date he filed his original disability claim.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s injury during mandatory boxing while at the U. S. Military Academy was unfortunate.  However, by law he, as a USMA cadet, was ineligible for disability processing.  As he is aware, he is eligible for VA benefits.

2.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__slp___  __alr___  __teo___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001061120	
SUFFIX		
RECON		
DATE BOARDED	20011023	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.